STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Qn Docket No. 759-12-13 Wnev
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KIRK WOOL
Plaintiff
Vv. 7
ANDREW PALLITO, Commissioner,
Vermont Department of Corrections
Defendant
DECISION
Cross-Motions for Summary Judgment
Plaintiff Kirk Wool, an inmate in the custody of the Vermont Department of Corrections
(DOC) claims that statutory changes and the Department of Corrections’ adoption of an inmate
classification scheme that includes “Level C” after the offenses that led to his incarceration,
violate the Ex Post Facto Clause of the United States Constitution, U.S. Const. art. I, § 10,
because they effectively render him ineligible for parole. The gist of his claim is that the DOC
will not route a Level C offender towards the rehabilitative programming that will make that
offender a viable candidate for various forms of release to the community, and without that
supervised release, the Level C offender has no viable chance of parole. The parties filed cross-
motions for summary judgment on this claim.
After the parties filed their motions, the court expressly recognized that Mr. Wool’s claim
is substantially the same as the ex post claims recently brought by two other inmates, Bernard
Carter and Dennis Chandler. Entry Order 1-2 (filed Sept. 1, 2016). Mr. Carter’s case is
pending. See Carter v. Menard, No. 718-11-15 Wnev, 2016 WL 5944416 (Vt. Super. Ct. Apr.
13, 2016) (declining to dismiss for failure to exhaust due to special circumstances). The court
reached the merits in Chandler and ruled in favor of the State. Chandler v. Pallito, No. 210-4-13
Wnev, 2015 WL 10551407 (Vt. Super. Ct, Dec, 24, 2015). Mr. Chandler appealed. The court
then stayed this case pending an appellate decision in Chandler. “At a minimum, the Court
believes that a ruling on the ex post issues in this case will have a more certain foundation when
informed by the Supreme Court’s decision in Chandler.” Entry Order 3-4 (filed Sept. 1, 2016).
The Supreme Court affirmed in Chandler on September 23, 2016. Chandler v. Pallito,
2016 VT 104, 2016 WL 5339553. The court then lifted the stay in this case and invited the
parties to supplement their summary judgment briefing in light of that decision. Both parties
have submitted supplemental memoranda.
Mr. Wool’s claim in the case was that the Level C classification prevented programming
that, in turn, prevented parole. Shortly after the Chandler opinion was issued, and before this
court enlarged time and provided the opportunity to submit supplemental memoranda, Mr. Wool
purported to modify his claim as follows:
I write to give notice that to every extent that my Motion for Summary
Judgment argues that the Level C designation keeps me from entering prison
program [sic], I rescind ail such assertions. .. .
The Level C designation on its own terms acts to make me serve much
longer of my sentence than I would prior to the designation with its unambiguous
declaration that it subjects me to “long term imprisonment”. It makes no
difference any additional prejudice the designation causes, such as delay or denial
for entering prison programs, because once the designation is applied the “long
term imprisonment” alone “disadvantages” me for parole release.
Letter from Kirk Wool to Judge Tomasi (filed Oct. 3, 2016). This is reflected in Mr. Wool’s
post-Chandler briefing as well.
The Chandler decision controls this case. Broadly stated, the Chandler Court concluded
that “because the statutes and directives cited by plaintiff did not alter the Department’s
fundamental discretion over treatment programming and early release, their practical
implementation did not create a sufficient risk that plaintiff would be incarcerated for a longer
period than under the earlier statutes and rules” for ex post facto purposes. Chandler, 2016 VT
104,918. Chandler squarely disposes of Mr. Wool’s original claim here. His reformulated
claim is that a Level C classification directly—regardless of any impact on programming—limits
the-fundamental discretion vested in the parole board over parole decisions, Even if the court
were to allow him to change his claim at this stage in the case, the grounds for decision in
Chandler apply the same way to the reformulated claim. Under either version of the claim, the
Commissioner is entitled to summary judgment.
ORDER
For the foregoing reasons, the State’s motion for summary judgment is granted; Mr.
Wool’s motion for summary judgment is denied.
Dated at Montpelier, Vermont this it day of March, 2017.
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Mary Miles Teachout
Superior Judge